What construction is to be given to the cieeu made to the defendant by the heirs of Joshua Kendall, in which the plaintiff" was one of the grantors, is the question before us. Did the deed convey only the estate or interest which the plaintiff had as one of the heirs at law of his brother; or did it also convey the right which, by a prior and independent title, he had as owner of the mill, and as appurtenant thereto, to maintain the dam and reservoir ?
We think, though the question is certainly a difficult one, the first is the true construction. If we look only at the first words of release, they are doubtless broad enough to convey the plaintiff’s entire interest in the estate. But to ascertain the intention of the parties the whole instrument is to be taken together. After the description of the estate, the language of the deed is, “ hereby quitclaiming all our right, title and interest in and to all *212the real estate situated in West Cambridge and Waltham, owned by Joshua Kendall at the time of his decease.” It is the deed of the heirs at law of Joshua Kendall; and the interest they quitclaim is the interest in the real estate owned by him at his decease. The right to maintain this dam and reservoir was not of that estate. It had long before been severed from it, and become appurtenant to another estate, to wit, the mill of the plaintiff. Placing ourselves in the situation of the parties, reading the deed in the light of the then existing facts, we think that what on the one side was intended to be conveyed, and on the other expected to be received, was the estate which Joshua had at the time of his decease; and that the interest in or right to the dam and reservoir were not in the contemplation of the parties when this deed was made. It was made alio intuitu.
The reservation of that portion of the estate which had been set off to Hannah Kendall as dower, while it has some tendency to show that no other part is reserved, also shows that the subject matter which the grantors were conveying was so much of the estate of the deceased brother as had not been assigned to the widow as dower.
The covenants do not enlarge the estate, but apply to the premises granted. There is nothing in the language, which shows that the parties had in view any other estate than that which Joshua Kendall owned at the time of his death. The covenant against incumbrances includes only those made or suffered by the grantors respectively. This incumbrance, if so it may be called, existed before the estate came to the possession of the deceased, and was not created or suffered by the heirs.
On the other hand, the right to the dam and reservoir, that is, to maintain the dam and flow the land, had become annexed to the mill estate, and would pass with it as appurtenant. Only the most unequivocal words would require us to say that, in releasing and quitclaiming his title as heir to the estate of his brother, the plaintiff had relinquished a most valuable interest appurtenant to another estate, which he held by a distinct and independent title. Such is not the case in the deed before us.
Judgment for the plaintiff.